HCN: Ruling favors artists on key issues – injunction issued

Posted on February 24, 2016 by St Augustine

Historic City News did not expect a final decision today on how the City of St Augustine will begin to comply with the rights of artists and the United States Constitution; however, an immediate injunction against the City of St Augustine has been ordered on eight specific provisions.

The seventy-seven page ruling was signed by US District Judge Brian J Davis this afternoon in Jacksonville and the parties were ordered to confer and file, on or before March 25, 2016, a joint Case Management Report proposing a schedule for the balance of this case.

Judge Davis wrote that the artists suing the City have satisfied the court that they are likely to succeed in establishing that a number of conditions, imposed in the most recent version of the “peddler” and “mobile vendor” ordinance, are “an unconstitutional prior restraint of speech and expressive conduct”, in violation of the First Amendment.

Defendant, the City of St. Augustine, is hereby preliminarily enjoined from enforcing or threatening to enforce City of St. Augustine Code of Ordinances §§ 17-201 et seg. (the Peddler’s Ordinance); 17-504(a)(8), 17-505, 17-509(2)c, 17-509(11) (the Mobile Vendor’s Ordinance) pertaining to fees, insurance, and hours of operation; and 22-6(h)(3) and (4) pertaining to fees, against peddlers and vendors, pending further Order of the Court.

To the extent that the city’s lawyers come up with a plan to legally separate the remaining un-challenged portions of the ordinances, those portions will stand until a final ruling is made at trial.

On May 11, 2009, Bruce Bates, Richard Childs, Elena Hecht and Kate Merrick, won a preliminary injunction prohibiting the City from enforcing, or threatening to enforce City Ordinance Section 22-6 against visual artists.

United States District Judge Marcia Morales Howard recounted that Section 22-6 was amended on November 13, 2007, to prohibit the sale of any goods or merchandise on the sidewalks, alleys, streets, parks, and other public places within HP-2 and HP-3 zoning. The sale of newspapers of general circulation was excluded from this prohibition, as was vending on approved parade routes or during city-sponsored or permitted special events.

The Ordinance allowed vending within the Francis Field Activities Field with a permit, and within all public areas outside the Historic District without a permit, subject to certain restrictions.

In the original Bates vs City of Augustine, the Court determined that the evidence did not support the City’s stated interest of “protecting the local merchant economy”. Judge Howard wrote, “The record before the Court fails to disclose how or why there is a need to protect the local merchant economy, much less how the Ordinance serves to do so.”

The Court also found no existence of governmental interests outside of the Plaza, nor did the City explain why a prohibition of vending activities throughout the entire Historic District was necessary to address the government interests. The Court determined that the evidence presented did not support extending the vending prohibition beyond the Plaza.

The Court also found that “the Ordinance appears to burden substantially more speech than is necessary to further the City’s interests.”

Because the Court found that the Ordinance was not narrowly tailored, it did not render a definitive determination as to whether the Ordinance provided plaintiffs with adequate alternative channels of communication; although the Court stated that the Ordinance raised “significant concerns”.

The City paid no heed to long-time constitutional rights advocate, attorney Thomas E. Cushman, when he appeared before the city commission asking for compliance to the last court order and offering to discuss how to reach an accord with the City Attorney and City Manager. So, as promised, on June 18, 2015, Bruce Kevin Bates, Elena Hecht, Kate Merrick, and Helena Sala, returned to court.

Today’s Order Granting Preliminary Injunction, reminds all city taxpayers that they are back on the hook for another round of legal fees.

For a complete copy of today’s ruling, reference Case 3:15-cv-00731-BJD-JBT United States District Court, Middle District of Florida, Jacksonville Division.